Why a Centuries-Old Legal Profession is Timeless and Loveable to its Practitioners

Workroom, courtroom, boardroom, classroom–practitioners enjoy doing and talking law.

Fortunately, the language of our law isn't Latin. The heyday of Latin phrases in our law was the nineteenth century (the 1800s) back when lawyers and judges had knowledge ("information and skills acquired through experience or education"1) of Latin. Use of Latin phrases has been in decline since at least the 1920s for good reasons–primarily problems with pronunciation.Anyway Latin was for the church–not the public.

Learning (through instruction, study, experience) is usually a precondition to being knowledgeable. Few reported sightings of a law prodigy.

Skill
Recall the venerable adage "a lawyer's time and advice are his [or her] stock in trade."3 Anybody who assumes the same legal services performed by different lawyers are fungible (like hydrocarbon molecules in a pipeline) is living in a fool's paradise. A competence scale of good, better, best is realistic. Reportage that all lawyers are created equal would be "false news!" Equal opportunity not equal outcomes is a reality of law school education. Great practical experience and continuing professional development (CPD) containing "significant substantive, technical, practical or intellectual content"4 raise lawyer competence.

Michael Thomas' novel Someone Else's Money5 is satire about self-interest, greed and a U.S. financial market meltdown. It "reverberates with a love of art history"6–a good read. Anyway Thomas refers to a fictional character as a "client's lawyer."7 It then reads "he never went further with a declaration of principle than the first trace of a client's frown."8 A lawyer doesn't exercise legal skill (e.g. objectivity) by rubber-stamping something for a fee, to wit, only telling the client what the client wants to hear and not telling the client what the client needs to hear.9

Recall the lawyer's role as problem-solver is an amalgam of advocate and counsel (or advisor10). Lawyer as advocate, with a duty of loyalty to the client and acting ethically, promotes the client's position. Lawyer as counsel advises on any weakness in the client's position and suggests alternatives to achieve a result beneficial to the client.11 Ideally, lawyer as advocate and lawyer as counsel (or advisor) is the same person.

But lawyers aren't automatons. Using technology for efficiency doesn't abrogate legal professionalism (e.g. enthusiasm, pride in work, scholarship). Fear personal technology addiction (e.g. obsessive smartphoning–the device in your hand; always in your hand).

Not every lawyer will be an uber-techie. And a lawyer who eschews excessive screen time on an electronic device isn't a Neanderthal. Albeit in biochemistry a small amount of Neanderthal DNA (deoxyribonucleic acid) is present in some modern humans.12 Anyway there’s no clamour for a return to coal-fired Gestetner duplicating machines to print hard copies (ah–the good old days that weren’t).

Of course, practitioners strive to write (and speak) with “clarity, simplicity and brevity.”13 The greatest physicist of the twentieth century (the 1900s) supposedly said, “If you can’t explain it simply, you don’t understand it well enough.”14

Practitioners experiment with the English language–word usage. Ideally, a practitioner acquires a satisfactory and identifiable writing style–“the sound his [or her] words make on paper.”15

Practitioners develop a strong working knowledge of legal citation, writing and editing, bricks and mortar libraries (including law), online research sources, and a good dictionary.16 Preferably an Oxford or Merriam-Webster for the ordinary meaning of an important word in an enactment (statute or regulation) or a document (and for when writing an article). An important word is any word used for an important purpose. A good  dictionary may include a mini-guide for correct grammar and plain English.17 Spellcheck definitely isn't a dictionary. And it's not fail-safe to prevent misuse of words (e.g. near-homonyms18 like affect and effect, allusion and illusion, eminent and imminent19). Google can help when researching the meaning or usage of certain words and phrases. A well-prepared Definitions or Interpretation section in an enactment or a document is a handy practical resource when doing legal work involving that enactment or document. The relevant Interpretation Act can be useful concerning an enactment.

Practitioners are pragmatists. According to Oxford "pragmatic" means "dealing with things in a way that is based on practical rather than theoretical considerations."20 And "pragmatism" in philosophy is defined as "an approach that evaluates theories or beliefs in terms of the success of their practical application."21

But practitioners are foremost equity lawyers. Our superior courts of law also dispense equity. Equity is only dispensed in the court’s discretion. It is available to prevent gaps in the law and procedure. Equity provides for fairness or natural justice. Equity can be invoked "in the special circumstances of particular cases"22 (and to maintain public confidence in our judiciary). If there is a conflict between legal rules and equity, equity is to prevail. Where the law is clear on a matter (no conflict with equity) a court must apply the law even if the result seems harsh23 (or change that law–may require legislative action24). Recall the maxim "Equity follows the law."25 Knowing the role of equity face to face with law is an asset when researching the legal meaning of a situation–ask what can the court realistically be expected to do?

Doctrine
Doctrinal knowledge is the antidote for the disheartening expression "you don't know what you don't know." Broadly stated, legal doctrine is the rules of law (and associated legal  principles, case law, enactments). Legislation usually lags the judge-made law.

Our legal doctrine took centuries to build. The classical vocations (or callings) since antiquity (law, medicine, theology) are about applying specialized knowledge to real cases.

A perennial law learning objective is being able to critique (do "detailed analysis and assessment"26 of) the facts to: (a) state the problem, (b) determine the solution, and (c) achieve a specific law result.

Learning legal doctrine is fun–entertaining and enjoyable. It's flex-time friendly for self-directed learning, and to reflect on ("think deeply or carefully about"27) the law learned.

Doctrinal law is omnipresent and accessible. It’s thriving in law schools, courts, private practices, corporate legal departments, CPD programs, by self-study, and elsewhere.

Acquiring doctrinal knowledge propels curiosity ("a strong desire to know or learn something"28) and its close relation creativity ("the ability to create something from  nothing or something new from long-held beliefs"29). And doctrinal knowledge plus analysis is a prerequisite for creativity.30

WARNING – progressing from law enthusiast to grounded ("well balanced and sensible"31) practitioner, or jurist (law expert in a legal speciality or practice area) may cause mild euphoria.  

Possessing doctrinal knowledge in significant quantity begets polite self-confidence.

Practitioners who acquire superior knowledge of doctrinal law are admired by legal colleagues and others. This respect persists concurrent with the latest in pedagogy or a new electronic gadget being touted as hope for fixing legal education and saving our (750 years old32) legal profession.

Ergo
"Thinking like a lawyer"33 isn't vanishing. It has great elegance and sophistication (and the gene for exceptional longevity).        

Don’t stop believin'
Hold on [Calgary to your]…feelin'34


Concise Oxford English Dictionary, 12th ed, s.v. “knowledge”.
Stephen Waddams, Introduction to the Study of Law, 8th ed (Toronto: Carswell, 2016) at 38-40.
Attributed to Abraham Lincoln (and mostly by law memorabilia vendors, e.g. CafePress Inc., online: http://www.cafepress.ca/+abraham-lincoln-a-lawyers-time-and-advice-are-his-stock-in-trade+gifts).
4 Law Society of Alberta, The Rules of the Law Society of Alberta, r 67.1(2), (June 10, 2017), online: Law Society of Alberta https://dvbat5idxh7ib.cloudfront.net/wp-content/uploads/2017/01/04144612/Rules.pdf
Michael M Thomas, Someone Else’s Money (New York: Simon & Schuster, 1982).
6 Ibid at 510.
7 Ibid at 372.
8 Ibid.                                                          
9 Margaret McCallum, Deborah A Schmedemann & Christina L Kunz, Synthesis: Legal Reading,Reasoning and Writing in Canada (Toronto: CCH Canadian, 2003) at 122.
10 Ibid at 1-3.
11 Melvin I Urofsky, Louis D. Brandeis: A Life (New York: Pantheon Books, 2009) at 47-48.
12 Anne McIlroy, "Humans carry Neanderthal DNA, researchers find" The Globe and Mail (6 May 2010), online: The Globe and Mail www.theglobeandmail.com/ [Canada’s newspaper of record].  And see Yuval Noah Harari, Sapiens: A Brief History of Humankind (Toronto: McClelland & Stewart, 2014) at 15-16.
13 Waddams, supra note 2 at 35.
14 Albert Einstein. BrainyQuote.com, Xplore Inc, 2017, online: https://www.brainyquote.com/quotes/quotes/a/alberteins383803.html, accessed May 24, 2017.
15 William Strunk Jr & EB White, The Elements of Style, 4th ed (New York: Longman, 2000) at 66-69.
16 Of course, a good dictionary needn't only be the venerable Oxford English Dictionary (OED).  See Simon Winchester, The Professor and the Madman: A Tale of Murder, Insanity, and the Making of the Oxford English Dictionary (New York: HarperCollins, 1998) for a fascinating and quirky history of the OED.  Look forward to accessing the next edition of the OED by electronic subscription only.  See Alastair Jamieson, "Oxford English Dictionary 'will not be printed again'" The Telegraph (29 August 2010), online: http://www.telegraph.co.uk/; Padraic Flanagan, "RIP for OED as world's finest dictionary goes out of print" The Telegraph (20 April 2014), online: http://www.telegraph.co.uk/.
17 e.g. "Guide to Good English" in Concise Oxford English Dictionary, 11th ed, at 1701-1708 [not in current 12th ed];  "A Handbook of Style" in Merriam-Webster's Collegiate Dictionary, 10th ed, [an American publication] at 1535-1557 [less content in current 11th ed].
18 Recall a "homonym" is "a word having the same spelling or sound as another but a different meaning. See Jeremy Butterfield, ed, Fowler's Dictionary of Modern English Usage, 4th ed (Oxford: Oxford University Press, 2015) s.v. "homonym".
19 Ibid s.v. "homophone".  And see Canada, The Canadian Style: A Guide to Writing and Editing, rev and exp ed (Toronto: Dundurn Press, 1997) at 55-57.
20 Concise Oxford English Dictionary, 12th ed, s.v. "pragmatic".
21 Ibid s.v. "pragmatism".
22 JH Baker, An Introduction to English Legal History, 4th ed (Oxford: Oxford University Press, 2004) at 202-204.
23 See Guest, Re (Bankruptcy), 2002 SKQB 483 [Guest] where a specially equipped Chevrolet van used by a quadriplegic in volunteer work helping disabled individuals was not exempt from seizure by creditors.  The Exemptions Act, RSS 1978, c E-14, s 2(1) exempted "one motor vehicle where it is necessary for the proper and efficient conduct of the execution debtor's business, trade, calling or profession." (Emphasis added)  The jurisprudence (case law) considered by the Registrar in Bankruptcy made it clear the van was not exempt property.
24 After the sad result in Guest, ibid, Saskatchewan's current exemptions law The Enforcement of Money Judgments Act, SS 2010, c E-9.22, s 93(1)(e) reads "one motor vehicle with a value that does not exceed the prescribed [by regulation] amount;"  The exemption is not tied to a debtor's business, trade, calling or profession.
25 Osborn’s Concise Law Dictionary, 12th ed, s.v. "equity, maxims of".
26 Concise Oxford English Dictionary, 12th ed, s.v. "critique".
27 Ibid s.v. "reflect".
28 Ibid s.v. "curiosity".
29 Catherine Yang, "Chaos, inspiration, and the creation of creativity" Epoch Times [Alberta Edition] (19-25 May 2017), online: Epoch Times www.TheEpochTimes.com/.
30 Peter F Drucker, Management: Tasks, Responsibilities, Practices (New York: Harper & Row, 1974) at 267-268.
31 Concise Oxford English Dictionary, 12th ed, s.v. "grounded".
32 Baker, supra note 22 at 156-157.
33 McCallum, supra note 9 at xvii, 7.
34 Journey. "Don't Stop Believin'." By Steve Perry, Jonathan Cain, Neal Schon. Escape. Columbia, 1981. LP.  Unofficial anthem for San Francisco Giants' 2010 postseason and World Series that Giants won.


C. J. Shaw, QC LLM, born and raised in north-east Nova Scotia (46° 11' 48.9084'' N 59° 57' 25.2144'' W),  is a Dalhousie lawyer committed to contributing (and earning a living) in the Alberta legal community. He is a member of the CBA Alberta Legislation and Law Reform Committee.